At Common Law a valid contract between husband and wife was impossible; since the wife had no power to contract generally, and further the Common Law theory of the legal unity of husband and wife made a promise between husband and wife one which in law had but one party.1 It was therefore unenforceable by either even after divorce,2 or after the death of the other.3 Thus a contract for the division of property between husband and wife, each agreeing to make no claim to the estate of the other, does not bar the right of either.4 Under this rule a note by a wife to a partnership of which her husband is a member is invalid.5 This rule applied at Common Law even to executed contracts,6 including direct conveyances of land by one to the other.7 These rules apply only to a contract with a lawful wife, a contract with a wife by a bigamous marriage not being invalid for that reason.8

31 Lewis v. Howell, 98 Ga. 428; 25 S. E. 504.

32 Parsons v. Rolfe, 66 N. H. 620; 27 Atl. 172.

33 Ellis v. Cribb, 55 S. C. 328; 33 S. E. 484.

1 Wallingsford v. Allen, 10 Pet. (U. S.) 583; Erringdale v. Riggs, 148 111. 403; 36 N. E. 93; Scarborough v. Watkins, 9 B. Mon. (Ky.) 540; 50 Am. Dec. 528; National Granite Bank v. Whicher, 173 Mass. 517; 53 N. E. 1004; Clark v. Patterson. 158 Mass. 388; 33 N. E. 589; Roby v. Phelan, 118 Mass. 541; Loomis v. Brush, 36 Mich. 40; Turner v. Davenport, 61 X. J. Eq. 18; 49 Atl. 463; Woodruff v. Apgar, 42 N. J. L. 198; Homan v. Headley. 58 N. J. L. 485; 34 Atl. 941; Fowler V. Trebein, 16 O. S. 493; 91 Am.

Dec. 95; Johnston v. Johnston, 31 Pa. St. 450; Putnam v. Bicknell, 18 Wis. 333. The court calls it "the rule of the Common Law which has been declared and recognized by the Igeislature and by this court that contracts between husband and wife are void." National Granite Bank v. Tyndale, 176 Mass. 547, 550; 51 L. R. A. 447; 57 N. E. 1022.

2 Pittman v. Pittman, 4 Or. 298.

3 Clark v. Royal Arcanum, 176 Mass. 468; 57 N. E. 787.

4 Jewell v. McQuesten, 68 N. H. 233; 34 Atl. 742.

5 Clark v. Patterson, 158 Mass. 388; 35 Am. St. Rep. 498; 33 N. E. 589.

6 Homan v. Headley, 58 N. J. L. 485; 34 Atl. 941; Woodruff v. Apgar, 42 N. J. L. 198.

Such contracts were invalid in equity while executory,9 but if executed and fair and reasonable, equity would enforce them.10 But as such conveyance does not pass the legal title, it is not available in an action in ejectment.11 The effect of modern statutes upon the power of a married woman to make contracts with her husband is a question on which there is a lack of harmony arising in part only from a diversity of the statutes. No question can arise where the statute specifically permits a husband and wife to make contracts with each other,12 except where they attempt to modify the rights and duties growing out of the marriage relation itself. A promise by a husband to pay his wife for performing domestic duties is invalid ;13 and so seems to be a promise to pay her for assisting him in his business,14 or a promise by him that the property produced by their joint labor in farming shall be the property of the wife in consideration of her working for him.15' As additional reasons for the invalidity of such contracts have been suggested a lack of consideration,16 and the requirements of public policy.17 But a contract by a wife to furnish board for prisoners in jail, made with her husband who had a right to sublet his contract with the county to furnish such board, has been held to be so far outside the duties incident to the marriage relation as to be enforceable.18 So under a statute expressly forbidding a contract between husband and wife with reference to realty, it is clear that such a contract is invalid, even if they have separated.19 So power to husband and wife to contract with each other does not include contracts for future separation.20 Power to a married woman to convey directly to her husband does not authorize mutual releases of dower rights.21 By statute in some jurisdictions husband and wife cannot contract with each other with reference to their dower rights.22 Statutes providing for separate property subject to the absolute disposition of the married woman are held to permit her to contract with her husband.23 In some jurisdictions contracts between husband and wife are enforceable in equity and not at law.24 Statutes conferring contractual power either gen-enerally or with reference to the separate estate have been held to make contracts between husband and wife valid.25 Even though the wife cannot sue her husband in his lifetime, she can

7 Newman v. Willetts, 48 111. 534; Sims v. Ricketts, 35 Ind. 181; 9 Am. Rep. 679; Fowler v. Trebein, 16 O. S. 493; 91 Am. Dec. 95; Ball v. Ball, 20 R. I. 520; 40 Atl. 234.

8 Vaughn v. Vaughn, 100 Tenn. 282; 45 S. W. 677.

9 Erringdale v. Riggs, 148 111. 403; 36 N. E. 93.

10 Jones v. Clifton, 101 U. S. 225; Ogden v. Ogden, 60 Ark. 70; 46 Am. St. Rep. 151; 28 S. W. 796; Corr's Appeal, 62 Conn. 403; 26 Atl. 478; McCormick v. Hammersley, 1 App. D. C. 313; Eckermeyer v. Hoffmeier, 98 Ky. 724; 34 S. W. 521; Vought v. Vought, 50 N. J. Eq. 177; 27 Atl. 489; Ball v. Ball, 20 R. I. 520; 40 Atl. 234.

11 Wallace v. Pereles, 109 Wis. 316; 83 Am. St. Rep. 898; 58 L. R. A. 644; 85 N. W. 371.

12 Larkin v. Baty, 111 Ala. 303;


18 So. 666; Osborne v. Cooper, 113 Ala. 405; 59 Am. St. Rep. 117; 21 So. 320; Roth's Estate, 6 Ohio N. P. 498.

13 Brittain v. Crowther, 54 Fed. 295; Lee v. Guano Co., 99 Ga. 572; 59 Am. St. Rep. 243; 27 S. E. 159; Michigan, etc., Co. v. Chapin, 106 Mich. 384; 58 Am. St. Rep. 490; 64 N. W. 334; Blaechinska v. Howard Mission, 130 N. Y. 497; 15 L. R. A. 215; 29 N. E. 755; Birkbeck v. Ackroyd, 74 N. Y. 356; 30 Am. Rep. 304.

14 In re Kaufmann, 104 Fed. 768; Brittain v. Crowther, 54 Fed. 295; Turner v. Davenport, 61 N. J. Eq. 18; 47 Atl. 766; Blaechinska v. Howard Mission, 130 N. Y. 497; 15 L. R. A. 215; 29 N. E. 755.